‘Human Resources Management’ Category
Our company is being bought out by another company. Can our current employer just hand over our personnel files so they (the other company)can look through them to determine if they will hire us because of this buy/sell arrangement?
It’s the purchaser’s responsibility to ensure the company being bought has represented itself in an accurate manner. In general, the seller grants access to financial records, employee files, contracts, client data and any other information needed for the buyer to perform their due diligence prior to the actual acquisition but after a formal intent to purchase statement has been made.
The purchasing company has a right view current employment policies/procedures; employees’ and contractors’ compensations; employees’ benefits including vacation/sick time, medical/dental, STD/LTD, retirement plans and COBRA responsibilities; labor disputes; worker’s comp claims; turnover reports including the reason for employee terminations; harassment claims; health and safety claims; wage and hour disputes; pending litigation; and employees’ citizenship status. All of this information is part of the due diligence required of a responsible buyer.
With considerations given to employee contracts or collective bargaining agreements, the purchaser may review the company’s organizational chart including management functions and consider eliminating positions based on company goals or finances. This many include reviewing employee resumes, performance evaluations, and disciplinary history.
Various state and federal laws address the distribution of employees’ private information during acquisitions. Generally, the buyer must have a need to know the information it’s requesting. Thus, it’s encouraged to enlist the services of a skilled merger and acquisition attorney to assist both buyer and seller in ensuring legal compliance.
Can an employee hold a position with the company as well as perform another job as a contractor with the same company?
It’s possible for an employee to also be an independent contractor with the same company. However, it’s generally not recommended since there is so much risk involved. The IRS establishes the criteria for determining whether a worker is an independent contractor or an employee. The criteria include who directs the work, who makes the financial decisions involved in the work and who will gain or lose from those decisions, and is there a demonstrated relationship i.e. a contractual agreement. In general, if the employer bears all the responsibility then the worker is an employee whereas if the worker assumes the majority of the responsibility then an independent contractor relationship is formed.
Workers are classified based on their job duties. Thus, a worker with two distinct jobs in the same company may be considered an employee in one job but also have an independent contractor relationship in another job. For example, a full time finance employee with a graphic design background may be asked to create a promotional brochure for the company on a contract basis. Even if the separate jobs are properly classified per IRS guidelines the employer must consider if the two jobs are similar enough that a true independent contractor relationship couldn’t exist. For example, if a marketing employee was asked to use his graphic design skills to make a promotional brochure it could be assumed that such a request is just additional job responsibilities. Such additional duties may be compensated but it wouldn’t constitute an independent contractor relationship.
The penalties for misclassifying workers as independent contractors are severe, especially if a misclassified worker is considered non-exempt under the federal Fair Labor Standards Act. In such cases, the worker may be entitled to back pay of overtime wages and damages. Additionally, since independent contractors don’t receive benefits such as worker’s compensation further penalties may be incurred. In the last few years, both the IRS and the Department of Labor have promised to increase enforcement of worker classification. Employers are under the microscope more than ever. Thus, even if you’re confident that the two separate jobs are classified correctly you may want to consider consulting a specialized attorney or, to play it safe, classify the worker as an employee in both jobs.
I have an employee who is slacking on her job, she is a good worker when I am around, but since I cover three shift I can not always be on her shift to make sure she does. I have reminded her several times of the things she “forgets” to do.Can I cut her hours and move her to a fill in position? will she be able to claim partial unemployment benefits?
It can be very frustrating as a manager to know that your employee has the potential to be a good worker but doesn’t have the professionalism or maturity to be at her best without you micromanaging her. Following progressive discipline ensures the employee has been made aware of her poor performance and given the opportunity to improve it prior to being given a severe discipline like demotion.
Progressive discipline provides responses to employee performance or misconduct increasing in severity with each occurrence. Generally, progressive discipline includes counseling or verbal warning then a written warning followed by a suspension or final written warning and, ultimately, termination. With any type of disciplinary method the employee must be informed of the specific behaviors that constitute the poor performance or misconduct. In order for progressive discipline to be effective the employee must be involved in the process and clearly understand the corrective actions that must be taken.
Since the employee has been verbally warned of her negligence, maybe consider giving her a written warning outlining the tasks she continually forgets to complete and what is expected of her going forward. Be sure to include that continued poor performance will lead to further disciplinary actions including termination. If your company doesn’t have a standard format for written warnings, a basic memo format will work fine. Meet with the employee face to face to discuss the written disciplinary action. In this case, you should also mention to her that you’ve noticed the good work she does when you’re on shift with her and that you expect the same conduct will continue on other shifts as well. It’s important to recognize good behavior as well as engage the employee in the steps to be taken to improve her performance.
Once a written warning has been issued and the employee continues to fail to meet job expectations then a more severe discipline is warranted. Typically, it’s not recommended to continue the employment of a worker who is not successfully performing her job. If she can’t meet job expectations during a full time shift, why would you expect her to perform differently in an on call position? In certain industries like retail or food service, being demoted to an on call or fill in position may be considered part of progressive discipline. It can sometimes serve as a warning to an employee and the employee will only be offered more shifts as her performance improves. Again, this is not typical but sometimes used in certain industries.
Regulations surrounding unemployment benefits vary by state. Generally speaking, an employee whose hours have been reduced to part time would be awarded partial unemployment benefits. An employer in your situation could argue that the reduction in hours is part of a disciplinary procedure since the employee’s performance has been sub-standard. The determination for eligibility would then be up to the state representative.
An employee that recently had a heart attack, and works exclusively around dangerous equipment. Is the company required to keep him on even though they do not have any other jobs that he is qualified for? He is being considered a hazardous operator that possibly could endanger the lives of co-workers in the field, please advise.
The Family and Medical Leave Act (FMLA) allows for employers to adopt a uniformly applied policy requiring employee’s prior to returning from covered leave to submit a fitness for duty certification from a health care provider stating that the employee is able to resume his job functions. Under the regulations, the certification may address the employee’s ability to perform essential job functions. To ensure the employee is disclosing all of his job functions to the health care provider, an employer may require that the health care provider sign off on the employee’s job description. Doing so ensures the doctor is fully aware of the employee’s job responsibilities.
If the employee is taking intermittent FMLA leave, an employer may require a fitness for duty certification once every thirty days if reasonable safety concerns exist regarding the employee’s ability to perform job responsibilities based on the condition for the leave. The employer must have a reasonable cause that the employee’s condition is prohibiting him from performing his job functions.
Keep in mind that the employer must inform the employee at the time of leave designation that a fitness for duty certification and what, if any, supporting documentation will be required. If no such notice was given then the employer cannot require the certification.
FMLA fitness for duty certifications cannot be required after the employee has returned to work from leave. However, under the Americans with Disabilities Act (ADA), an employer may require an employee to submit to a medical exam after an employee returns from leave if the employer has reasonable concern that the employee’s medical condition is impairing his ability to perform job functions or posing a threat to himself or others. An employer’s reasonable belief must be based on objective evidence or sufficient business need. For example, the employee is making mistakes when operating machinery or the employee is not able to concentrate on a task. Both may be considered evidence supporting the need for a medical exam.
Assuming the employee passes the appropriate medical examinations then he should be able to maintain his job. Taking any adverse action, such as demoting or terminating the employee, would most likely be grounds for a discrimination claim. It’s still the employer’s responsibility to ensure a safe work environment for all employees. So, if concerns continue to arise they must be addressed with the employee immediately and appropriately documented.
I have an employee working nine hours a day two days a week(1pm to 10pm) by himself on a gas station convenience store in California. We were paying him for nine hours/day (total 18 hours a week). Can he claim for not given break during work.
There are no federal laws requiring employers to provide employees with meal periods or rest breaks. However, many states, including California, have adopted legislation on the matter. California employers, in general, must provide employees working more than five hours in a workday at least a thirty minute meal period. An “on duty” meal period is permissible if the employee’s work doesn’t allow for him to be relieved of duties and both the employer and employee have a written agreement confirming an on duty meal period is agreed upon. An employee working alone in a gas station would be considered unable to be relieved of his responsibilities and would qualify for an on duty meal period. Keep in mind the on duty meal period must be agreed in writing by both parties. The written agreement must include a statement that the employee, in writing, may revoke the agreement at any time.
Also, any meal period during which an employee is not completely relieved of his job duties is considered time worked and must be compensated at the regular rate of pay.
In regards to your question, yes, the employee can claim for not being given a break. When an employee files a wage claim a Deputy Labor Commissioner considers the information provided and determines how to proceed. If the claim is not dismissed the Commissioner will schedule a conference or hearing to hear more information concerning the claim, including the employer’s perspective. The purpose of the conference is to resolve the matter without a hearing. If the matter can’t be resolved a hearing is held during which both parties testify under oath and a decision is made by the Labor Commissioner.
If the employee has already filed a wage claim it’s best for you to follow the appropriate procedures and, hopefully, settle during the hearing. If there is a written agreement in which both parties agreed to an on duty meal period then the claim will most likely be dismissed. However, if no such agreement exists it may be beneficial to you to offer meal premium pay. Meaning, for each workday that the employee didn’t receive a required meal period the employee would receive one additional hour of pay at the employee’s regular rate. Going forward, if the employee doesn’t agree to an on duty meal period the employer must either provide the thirty minute meal period during which the employee is completely relieved of his duties or pay the employee the meal premium pay.
- Attendance Management (1447)
- Benefits (2036)
- Compensation (2351)
- Employment Training (329)
- Hiring and Staffing (1019)
- Human Resources Management (4855)
- Labor Laws (1593)
- Management / Leadership Development (357)
- Performance Management (247)
- Structural Development (41)
- Termination (749)
- Workplace Health & Safety (348)
- Workplace Management (503)